Sunday, September 23, 2012

The attorney chosen to review cases at a Massachusetts state drug lab enveloped in scandal is a man of integrity who brings experience working both sides of cases, colleagues said.

Gov. Deval Patrick chose David Meier to lead the investigation of 34,000 criminal cases possibly linked to drug samples allegedly mishandled by a lab chemist who has resigned.

Meier, now a defense attorney and partner at Boston law firm Todd & Weld, was a county prosecutor for 20 years, including 12 years as the chief homicide investigator in the Suffolk District Attorney’s office.

"He brings a level of integrity to the process that is desperately needed," said David Frank, a writer at Massachusetts Lawyers Weekly and a former state prosecutor who worked in Suffolk's gang unit when Meier headed the homicide team. "David's been a prominent figure in the criminal justice system for a long time."

Max Stern, president of the Massachusetts Association of Criminal Defense Lawyers, said Meier is the right man for the job because both prosecutors and defense lawyers know and trust him.

"He has the energy and the ability to do the job," Stern said. "And, perhaps more than anything, he has the confidence of all the players in the field."

Fellow attorneys also cite Meier's work reversing wrongful convictions in the 1990s and 2000s. Meier helped overturn multiple convictions while heading Suffolk's homicide unit, after learning information that questioned defendants' guilt or whether they had received a fair trial.

Donnell Johnson had served three years for the 1994 fatal shooting of a 9-year-old boy when investigators received information that led to his release. Meier then headed a new investigation that led to two men entering guilty pleas.

Johnson's attorney, Stephan Hrones, said Meier was trustworthy and "very well thought of as a prosecutor."

Defense attorney Stephen Weymouth has known Meier since the mid-1980s and argued a handful of cases against him.

"He is, in my opinion, a really good lawyer, and he's a really good guy," Weymouth said.

Meier told reporters Thursday his role is not to decide the outcome of the cases or advocate for prosecutors or defense attorneys.

"I stand before you today as an advocate for fairness and due process in the criminal justice system," he said.

Criminal defense attorneys predict New Hampshire jurors routinely will be told they have the right to find someone innocent even if the state proves its case because New Hampshire has passed what appears to be the nation's first "jury nullification" law.

Earlier this month, a Belknap County Superior Court jury found a Barnstead man innocent of felony drug charges after the judge instructed jurors they could decide that acquittal was "a fair result," even if the state had met the burden of proof.

It's a legal concept known as jury nullification, a power that experts say has resided in the U.S. Constitution since the nation began but is rarely applied in modern courtrooms.

And it's the basis for a new state law that permits the defense in all criminal cases "to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy."

Chuck Temple is a professor at the University of New Hampshire School of Law, where he is director of the criminal practice clinic. In his 27 years of practice, he said, he has always asked judges to instruct juries about nullification — but has never had a judge do so.

Temple said the new law, which takes effect Jan. 1, "changes the landscape of how criminal cases will be argued."

Before, he said, "in the vast majority of criminal cases, there would be no arguments regarding jury nullification. ... Now, it's going to be an everyday occurrence in criminal jury trials."

The language of the new law is "rather inartful," never actually mentioning nullification, Temple said. Still, he expects defense lawyers will start telling jurors about it right away; he plans to raise it in a trial set to start Monday in Merrimack County Superior Court.

"I wouldn't be doing my job if I didn't," he said. "It's just another seed I can plant in their minds in terms of what the fair thing to do is in a criminal case."

Attorney Mark Sisti, who represented the defendant in the Belknap County case, said the verdict was "an example of just how powerful jury nullification really is."

With the new law, Sisti said, he expects to see other acquittals come through jury nullification, in marijuana possession and statutory rape cases, for instance. And, he said, "I can envision scenarios even in murder cases...."

Judges have always had the discretion to give a jury nullification instructions, Sisti noted; "It's just that they have not done that."

Under the New Hampshire Bar Association's Criminal Jury Instruction guidelines, here's what judges may instruct jurors: "Even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case."

Jury nullification is "a historical prerogative of the jury," but that "does not mean that a jury must be informed by the judge of that power," the guidelines note. Such instruction is "best given only when it is requested by a defendant or when the nature of a particular case otherwise warrants it."

As of the new year, however, defense attorneys here can bring it up themselves. "It's a good tool, and it's been a long time coming," Sisti said.

In fact, the new law nearly died in committee shortly after it was first introduced in 2011.

The original language would have required the court in all proceedings to "instruct the jury of its inherent right to judge the law as well as the facts and to nullify any and all actions they find to be unjust."

The House Judiciary Committee unanimously voted the bill "inexpedient to legislate'' on Feb. 16, 2011. Just three weeks later, however, the same committee voted, 17-1, to pass an amended version of the bill.

What happened in between?

"What changed was that somebody pointed out that it was in the Republican platform that we're for jury nullification," recalled Rep. Gregory Sorg, R-Easton, who was vice chairman of the committee at the time. "I guess it came down from Republican leadership they didn't like that result."

Sorg, who is a real estate lawyer, said he and other committee members thought existing jury instructions were sufficient. And he worried about the message that passing a nullification law would send to would-be jurors.

"We're inviting them to tell us we passed bad laws," he said. "We're inviting them to nullify the work we did, maybe on a whim. And that just doesn't sit right."

Still, Sorg ended up voting for the amended version that didn't mention nullification but required the court to "instruct the jury of its right to judge the facts and the application of the law in relationship to the facts in controversy."

By the time the Senate passed the measure the following January, the obligation had shifted from judges to the defense to inform the jury of that right. And a conference committee's final version, which Gov. John Lynch signed into law on June 18, applied it only to criminal cases.

Rep. Lucy Weber, D-Walpole, was the sole "no" vote when the House Judiciary Committee passed the bill the second time around.

"We are a nation of laws, and I think that the laws are there for all of us and I think they ought to be followed," she said. "And to encourage people to ignore the law, I think, is a dangerous thing."

"If we have laws that are unjust, either clearly unjust on their face or as they're applied, then you go to the Legislature and you change the law," Weber said. "You change it for everyone."

Dick Marple, a former Republican representative from Hooksett, is the state contact for the Fully Informed Jury Association, which promotes jury nullification.

Marple said New Hampshire is the first state to pass such a statute, a step he sees as "restoring a little justice to the system."

Monday, September 17, 2012

After watching part of the sanctions hearing of Las Vegas Sands Corp. attorneys this past week in District Court, I reached one undeniable conclusion:

It's a good thing the Cleveland Clinic Lou Ruvo Center for Brain Health is located near the Regional Justice Center. Several of the casino company's lawyers obviously suffer from dramatic memory loss.

The condition I observed was either the first recorded case of shared early onset Alzheimer's, or the debilitating strain of breached ethics coming home to roost.

District Judge Elizabeth Gonzalez on Friday determined that the latter diagnosis was accurate. At the conclusion of the three-day hearing Wednesday, the judge allowed that the actions of Las Vegas Sands attorneys amounted to "serious violations of duties of candor." On Friday, she ruled the company's attorneys had demonstrated an "intention to deceive the court" and imposed a $25,000 fine payable to the Legal Aid Center of Southern Nevada and other sanctions.

"Intention to deceive." Such a polite phrase for what the lawyers were practicing.

The hearing came after the June disclosure that Las Vegas Sands and its Sands China affiliate had in local possession a computer hard drive with approximately 100,000 emails that were being sought by Jacobs' lawyers James Pisanelli and Todd Bice as part of discovery in the litigation.

Sands attorneys had previously gone to great lengths to misinform opposing counsel and the judge that the documents being sought were in Macau and unavailable because of its Personal Data Protection Act.

All rhetorical misdirection and purported memory lapses aside, the evidence showed the material has been in Las Vegas and under review by Sands lawyers since 2010.

Not that the amnesiac attorneys willingly came clean. Their foggy memory routines and discomfort on the witness stand were at times painful to watch.

Known as a bantam rooster in court, Glaser looked more like a wet hen under questioning. By the time she finished not remembering chronological facts that should have been simple matters for an experienced litigator, she was a plucked pullet. Fremont Street palm readers have a more convincing routine.

It's unclear whether being associated with the "intention to deceive" issue will impact attorney Justin Jones' candidacy as a Democrat for the District 9 state Senate seat. But, admittedly, the gift of obfuscation might serve him well at the Legislature, where such qualities are prized.

After 40 years of practicing law, Peek isn't running for elected office. This past week, he mostly ran for cover and played semantics Twister under Bice's inquiry.

Normally the picture of courtroom confidence, Peek emerged from examination a slump-shouldered equivocator who had been part of a legal team whose arguments possessed more swamp gas than substance. He sheepishly apologized to the court.

Why did these experienced attorneys go through such excruciating histrionics to deny what appears to have been undeniable? Were they, for example, attempting to further delay the Jacobs case?

One reasonable conclusion is that Las Vegas Sands really doesn't want the content of those emails to reach open court and public scrutiny.

At one point I considered asking the opinions of the two Department of Justice attorneys and an FBI agent who monitored the sanctions hearing as part of the ongoing federal investigation into whether Las Vegas Sands and its Macau casino affiliate violated the U.S. Foreign Corrupt Practices Act. Although they don't talk to the press, I'm guessing they're also interested in the full contents of that hard drive and those emails.

The State Bar of Nevada is duty-bound to pick up where Gonzalez left off. But no matter the end result, the character prognosis for these lawyers is grim.

They've not only lost their memories, but they've fractured their credibility as well.

Private attorneys in Boone and Callaway counties may soon be asked to help reduce public defenders' caseloads by providing free legal services for people unable to hire defense lawyers.

The Columbia Daily Tribune reported that the likely change is a response to a decision by the Boone County public defender's office to limit the number of cases it takes.

Presiding 13th Circuit Judge Gary Oxenhandler told members of the Boone County Bar Association that attorneys who practice civil law should prepare to take on pro bono work, along with criminal defense lawyers. Those cases will primarily involve misdemeanor criminal violations and misdemeanor probation cases.

"Don't think for a moment that somehow this crisis is the fault of the public defender. It is not," Oxenhandler said. "For the past 40 years, the public defender has been the savior of the private bar. For the past 40 years, a small group of dedicated professionals had been overworked, underpaid and in some instances treated like a second-class professional. We don't live on that street anymore.

"All of you have turned away a case because you were busy and knew you could not effectively serve the client's best interest. Up to now, the public defender has been denied that ability."

The local bar association must now develop a protocol for assigning attorneys to handle overflow cases.

"The fact of it now is that everybody is a criminal defense attorney," Oxenhandler told the group.

The state public defender system has set maximum caseload standards for its offices. When limits are exceeded for three consecutive months, the public defender director can certify that the local office has limited availability for cases. Officials then are supposed to work with prosecutors and judges to reduce demand for public defenders and can refuse new cases if an agreement is not reached.

Some Columbia attorneys said they appreciate the predicament faced by their civil service colleagues, but they also are concerned about taking on extra work without compensation.

"As lawyers, we are charged with performing legal services in a competent manner," civil attorney Dan Simon said. "We won't get paid for this. I know that sounds greedy, but we operate small businesses where we have assistants and law clerks who are dependent on us."

Other attorneys without criminal law experience said they worry about having to become instant experts in an unfamiliar area.

"Attorneys typically focus their practices in order to develop a comprehensive knowledge of the laws and practices in their selected field," said Amy Markel, who practices family law. "The process of specialization takes years as experience and knowledge build. It is unrealistic to expect an attorney with no training or experience in criminal law to develop an effective working knowledge of the applicable laws and systems overnight."

Sunday, September 16, 2012

Twenty years after poor, rural school districts ignited the debate over South Carolina public education financing, lawyers representing eight districts will go before the state Supreme Court on Tuesday to argue that it is now up to the high court to find a way to remedy what the Legislature will not.

The Supreme Court justices last heard oral arguments in the case in June 2008. This spring, the court - with two justices new to the case - ordered a rehearing to determine whether the state is meeting its constitutional obligation to deliver a minimally adequate education to all students. The court has told lawyers they should be prepared to discuss the impact of any education financing actions since 2008.

The case has been making its way through the state's legal system since it was filed in 1993 by 40 school districts, about half of the state's districts. In 2005, Circuit Court Judge Thomas Cooper ruled that the state met its obligation to deliver a minimally adequate education, except in the area of early childhood education, where he ruled for the plaintiffs.

The districts appealed, and the state cross-appealed.

Some, like Dillon 4 superintendent D. Ray Rogers, wonder whether the public, once caught up in the legal battle over children living in what became known as the "corridor of shame" along I-95, even realizes the case remains undecided.

So Rogers says he feels "like Custer," one of the last standing among the group of rural administrators who first turned to the courts 20 years ago to try to force a change in the way schools are funded.

A younger, more idealistic Rogers figured it would be short work to convince the then-Democratic Legislature of the validity of their concerns and their glaring needs.

"I was one of the original 40 (plaintiffs), and we felt that something had to change, that someone had to wake up and see the plight of the kids in these rural areas," he said Tuesday.

"I was thinking we would get it by the end of the (1993) school year," said Rogers, who has seen a generation of students pass through his school since the start of the case. "I learned one thing - the government and the law move as they see fit, not on any of our timetables."

Lawyers for the state are adamant in seeking dismissal of the latest appeal, countering that, after funding early childhood programs in high-poverty districts, the General Assembly has met the financial and educational obligations established by the state Constitution and the court.

"The distinction between our aspirations and our obligations lies at the heart of this case," Robert E. "Bobby" Stepp, the state's chief lawyer, argued in briefs filed in advance of Tuesday's hearing.

The state points out that with one exception, each of the districts spends more than the average state per-pupil expenditure. Districts can spend more than the state gives them by raising local property taxes. But poorer districts often have only low-value homes and little industry to tax.

Carl B. Epps III, lead lawyer for the districts, said the General Assembly "has played around the edges," consigning a generation of poor children to mediocre schools and refusing to take responsibility to reform the system "and keep pace with modern requirements."

"The issues haven't changed. The facts haven't changed," Epps said Wednesday. "The challenges these districts face are as severe, if not more severe, than when we tried the case in 2003-2004."

Lawyers for the state argue in legal papers that attorneys for the districts "have consistently attempted to confuse the issue by substituting achievement for opportunity and they have consistently ignored the definition of what constitutes a minimally adequate education." They argue that other factors, including generational poverty, have a lot to do with the low performance of students.

Rogers and other school administrators are aware that recession pressures and a Republican-controlled Legislature suggest any sort of dramatic financial change in current formulas will be elusive.

Schools statewide, which suffered deep cuts in state and local funding over the past several years, are only now stabilizing.

"Most of those politicians that have the wherewithal to make this happen, or even bring it to the table for discussion, I don't know that philosophically they care to do that anymore," said John Kirby, superintendent of Dillon 3 in Latta. "The fervor is not there because economic times are such that we ought to be thankful for what we have now."

Kirby signed on back in the late 1980s to seek state relief in providing fringe benefits to bus drivers, an effort that quickly expanded into the equity lawsuit.

"Back then it was a $32 million fix," Kirby said. "They could have given us $8 million and we would have said, ‘fine.'"

In the intervening two decades, thousands of pages of legal arguments have been filed and millions in lawyer fees spent. Lawyers for both sides have grayed but not mellowed.

Even President Obama has played a bit part in the drama over a Dillon County school, after a student wrote him of the plight of J.V. Martin Junior High, an aged, decrepit structure that he had visited during his 2008 campaign. Last month, Dillon 4 held a dedication for a new Dillon Middle School to replace J.V. Martin, a project made possible by an infusion of money from the U.S. Department of Agriculture with a $4 million grant and a $37 million loan.

And those three words, "minimally adequate education?"

Outside the courtroom, those words have spawned an ongoing and sometimes vitriolic conversation about the state of public education in South Carolina.

Rogers still believes in the case, saying that "a child should not be held liable because they were born in the wrong county or the less industrious area."

But whether the court will embrace that aspirational argument, over the state's assertion that the General Assembly is meeting its constitutional obligations, is anybody's guess.

"I don't know the answer," Rogers said. "I sure don't want to take the money from another school district. I feel like there has to be some kind of vehicle to help these districts or we are going to pay for it all the way through these students' lives."

"They were very, very unique. They were both, in my opinion, forces of nature," said attorney Warren Lindsey, who also practiced with Kirkconnell and Muller.

"When either Chan or Kirk came into a courtroom or came into a conference room, people listened. They commanded respect and attention by their mere presence."

Kirkconnell represented Circuit Court Judge Alan Apte, who was indicted in 2005 in an election-fraud case but was later cleared.

Kirkconnell successfully defended an Edgewater High School soccer coach charged with sexually molesting a teenage girl on campus.

And Kirkconnell convinced a Seminole County jury that a man who killed his cocaine dealer and the man's girlfriend in a hotel-room fight had acted in self-defense.

Muller did a lot of pro bono work, including spending 15 years working to get an Orange County man off death row and instead serve a life sentence.

In the 1980s, Muller was the first lawyer in Florida to use the battered-spouse-syndrome defense, Lindsey said.

In 2002, he convinced a jury that a woman who claimed her psychiatrist manipulated her and had sex with one of her multiple personalities had framed him by retrieving his DNA from his trash.

And Muller won an acquittal for a man accused of animal cruelty when he shot two Siberian huskies in a cow pasture, a case that attracted attention after a video of the incident appeared on YouTube.

Though some of their cases garnered media attention - Kirkconnell represented Isleworth millionaire James Robert "Bob" Ward in his high-profile second-degree-murder case last year - it wasn't something either attorney sought.

They understood, Snure said, that clients "are not commodities to be paraded around in the press, usually only to the benefit of the lawyer."

"Most of our clients wanted and got anonymity," Snure said. "Flying under the legal radar is a skill that must be honed and practiced. With all the opportunities for media exposure, avoiding it requires a conscious effort. Kirk and Chan understood that reality."

Susan Kirkconnell said her husband seldom talked about work and his cases at home.

"Kirk had great faith in our justice system," she said. "His job was to level the playing field and to make sure everybody was treated fairly."

But she didn't realize the impact her husband had on the legal community until his death, when she started receiving emails and messages from former colleagues and associates.

"Everybody has said how much they respected him and how much they valued his advice," she said. "It is heartwarming and is very humbling."

Both Kirk Kirkconnell and Chandler Muller mentored younger lawyers and helped attorneys who were starting their own practices.

Orange County Circuit Court Judge Heather Higbee said other lawyers should look to Kirkconnell and Muller in terms of how they want to run their practice, represent their clients and make their arguments in court.

"They never compromised their character, ever," she said. "We would all be honoring them in trying to carry on with those principles."

Even prosecutors have the utmost respect for Kirkconnell and Muller.

Criminal-defense attorney Cynthia Hawkins, who spent more than 20 years as a federal prosecutor in Orlando before going into private practice, said there were no cheap tricks when handling a case with Kirkconnell or Muller.

Both attorneys practiced with an old-school collegiality. They kept their word. They didn't play games.

Kirkconnell and Muller were both skilled negotiators and among the very best practitioners in federal court, Hawkins said.

"As a prosecutor, you were happy to have them on the other side, because you knew the case would be handled in an ethical way," she said.

Sunday, September 9, 2012

Attorneys for the commonwealth and top officials argue in briefs filed with the Supreme Court on Friday that a lower court was right to uphold the new voter ID law.

The high court is scheduled to hear arguments on Thursday in a challenge under the state Constitution after a lower court in August declined to prevent the photo identification requirement from taking effect for the November elections. Voter identification laws have become a subject of political argument around the country, with Republicans supporting them as a protection against voter fraud and Democrats arguing they will disenfranchise poor and minority voters.

Attorneys representing the commonwealth argued in their legal filing that challengers of the Pennsylvania law did not meet the legal standard to merit postponing its implementation. The state attorneys asserted that each witness presented by the challengers either has acceptable photo identification or could obtain it, and that absentee ballots likely would be available to witnesses whose physical or mental conditions would make acquiring identification difficult.

In a court filing last week, attorneys for the groups contesting the law, including the American Civil Liberties Union of Pennsylvania, argued the Commonwealth Court applied the wrong legal standard in assessing the potential harm of the voter ID law. The lower court was incorrect in requiring a showing of "inevitable" - rather than "immediate" - harm, the attorneys said.

In its filing on Friday, the commonwealth argued that the challengers had not even shown the law would cause immediate harm.

"Whether immediate or inevitable, the harm the individual appellants claimed they would suffer is disenfranchisement, yet the trial court concluded that all of them would be able to vote in November if they wanted to," attorneys for the commonwealth wrote.

In a separate brief filed on behalf of Gov. Tom Corbett and Secretary of the Commonwealth Carol Aichele, attorneys with the Philadelphia office of Drinker Biddle & Reath LLP argued the legal challengers are incorrectly asking the courts to overrule a policy judgment of the Legislature.

"At the end of the day, the question the appellants want this court to answer is: Which policy is better?" the attorneys wrote. "This court has held on numerous occasions, however, that that question is one for the General Assembly, not the courts, to answer."

Both briefs note that the U.S. Supreme Court has upheld a photo identification law against a federal constitutional challenge.

Attorneys for the commonwealth noted that state agencies have taken steps to make obtaining identification easier for people born in Pennsylvania and those with expired Department of Transportation identification. They also cited a new form of state-issued identification for people without the documents to secure a PennDOT card.

The justices of the state's highest court could be in court themselves soon, defending their rules of who can practice law in Arizona.

Two out-of-state attorneys are asking U.S. District Court Judge G. Murray Snow to void Arizona Supreme Court rules which place limits on the ability of some out-of-state lawyers to practice here. They want Snow to rule that once someone is authorized to practice law in one state, that right should be transferable everywhere.

Chief Justice Rebecca Berch declined to comment on the litigation. And John Phelps, president of the State Bar of Arizona, which recommends rule changes to the high court, said his organization has not taken a formal position about the change being sought.

But Phelps suggested that the Bar is likely to take a dim view over this kind of automatic interstate licensing, if for no other reason than it would limit its ability to discipline attorneys who are guilty of unethical practices.

Arizona moved partly in that direction two years ago when it created a system of reciprocal licensing.

In essence, lawyers from states that let Arizona attorneys practice there without additional testing requirements can, in turn, practice here.

There are some requirements, like a background check and fingerprinting. Attorneys must also have actively practiced for five of the last seven years.

And there's a one-day crash course on understanding Arizona rules and laws.

But attorneys from non-reciprocity states have to take the full-blown, two-day Bar examination. That requires not only extensive preparation - particularly for those who have been out of school for some time - but also waiting to find out if there was a passing score.

The lawyers who are suing are from California and Montana, both non-reciprocity states. Also suing is the National Association for the Advancement of Multijurisdictional Practice, based in California.

Attorney Grant Savoy, representing the challengers, said there is no reason for such a blanket rule.

"An experience attorney has already proven his or her competence, and that he or she is not a threat to the public by their prior licensing and track record," he argued in his federal court papers. Savoy said the testing requirements for lawyers from non-reciprocal states "rejects the best evidence of competence, and instead relies on a testing protocol that is known to lack content validity, criterion or predictive validity."

And he pointed out that the American Bar Association has recommended that all U.S. lawyers with three years of experience should be given the same kind of consideration that Arizona now grants only to attorneys from states with reciprocity.

Phelps said the move is not surprising, given the pressure on law firms to work with clients whose business is not just multistate but also international.

"The traditional physical boundaries that used to kind of contain the legal practice by state boundaries ... are starting to kind of disappear with the advent of the Internet and the virtual practice of law," he said.

He also said the law "is becoming kind of universal," what with model laws that most states adopt.

But Phelps said that still leaves the question of whether forcing Arizona to let all lawyers from other states practice here is in the best interests of the state.

"It's fair to say that our board has consistently been concerned about using our ability to oversee and regulate the conduct of the lawyers practicing in Arizona," he said.

"The concern is protecting the public and making sure that lawyers that are dealing with Arizona clients, that we have some ability to make sure not only are they meeting basic requirements but, if they're not, that we can do something about it," Phelps continued. "The concern is that the public really has nobody to go to when they have a bad experience with a California attorney who happens to be practicing in Arizona."

The petition has gotten the attention of attorney Tim Burr who now teaches at Arizona State University.

It was Burr, then in private practice, who waged a four-year fight just to get the Supreme Court to adopt the reciprocity rules.

His concern, however, wasn't so much to help attorneys from elsewhere. Instead, Burr, who did a lot of real estate work, said Arizona's rules effectively prohibited him and others from representing clients who needed help beyond Arizona's borders.

Burr said there's really a simple answer to what the lawsuit seeks: Other states should agree to let experienced Arizona lawyers practice there. Then the door would be open here to attorneys from those states.

"Rather than be a part of the system, they're trying to attack the whole system," he said.

Burr said, though, that may be difficult when dealing with California which he said is "a different animal."

For example, he noted that the State Bar of California is supporting the bid by an illegal immigrant to be able to practice law there. Phelps finds that somewhat humorous.

"They'd rather admit an illegal alien than a U.S. citizen from Arizona," he said. "How does that work?"

And California allows attorneys to practice there even if they have graduated from a law school not accredited by the American Bar Association, something not allowed elsewhere. Phelps said some of these schools are "real marginal."

But Savoy, in his lawsuit, says all the concerns are not only overblown. They also are unconstitutional.

"(The rule) is a wall that categorically disqualifies all experienced attorneys from some states, no matter their level of experience or the subject of their expertise; while it categorically qualifies all experienced lawyers from some states," he wrote.

Savoy also argued that the rule illegally affects interstate commerce.

Tuesday, September 4, 2012

The lawyers for AEGLive, the company being sued by Michael Jackson’s family for his alleged wrongful death, are fuming. I am told they may ask the court for sanctions against the Jackson family and their attorneys as early as Tuesday over emails that were leaked to the Los Angeles Times last week. The emails, which the Times published, were sealed as part of the wrongful death suit as evidence. The court case won't be heard until next year.

But my sources say that the Jacksons, desperate for money after their failed attempt to snatch Katherine Jackson this summer, are looking for sympathy in the court of public opinion. I'm told they selectively pulled a few mails from hundreds and turned them over to the Los Angeles Times in an effort to make AEGLive look guilty of somehow forcing Michael to perform 50 concerts in London.

The truth when the totality of the emails is uncovered in court will be quite different. Michael Jackson was in deep debt when AEG first proposed he do 10 shows at the O2 Arena. That was in the fall of 2008. Jackson waffled. But eventually he was persuaded to agree simply because he had no choice. In practical terms, he was broke. AEG offered him an easy way to make some decent money and get back on his feet.

One thing is true: on the way to the O2 Arena announcement in March 2009, Jackson freaked out. He got ripping drunk. The result can be seen in the video of the announcement. Michael is grinning from ear to ear, laughing, and has no idea what to say other than "This is it." On the way to the announcement from London, he was petrified. He was very late arriving at the Arena, as well, making everyone wait.

What the LA Times has discounted is the documentary, "This Is It." For as much as Michael was petulant, stubborn, lazy, scared, etc, he was also a perfectionist with certain specific abilities. The latter are seen in the film at the rehearsals that he did show up for. And no one at AEG Live was trying to kill him, or overwork him to the point of exhaustion. AEG wanted Michael to succeed. They let him handpick everyone from Dr. Conrad Murray to his chef to trainers etc.

Let's not forget: on May 5th, 2009 Kevin Spacey's former manager Joanne Horowitz ran into Michael at Dr. Arnold Klein's office. Michael was in great shape and looking forward to the tour. (Link follows.) Jackson's mental and physical status changed on a daily basis as the London shows loomed. Like any performer, there were days when he was excited and others when he was apprehensive.

California's requirement that attorneys from other states take a state bar exam violates the U.S. Constitution, four lawyers and two citizens claim in court. The attorneys filed a federal lawsuit against the California Supreme Court, the 9th Circuit Judicial Counsel, the U.S. District for the Northern District of California Court and more than two dozen judges.

"Plaintiffs apologize to the Courts for suing them," they wrote, but added that it was necessary to "improve the courts' efficiency and standing in the community."

Lawyers Jose Garcia, Marinna Callaway, Suzy Lee and an unnamed attorney whose husband is in the military joined two Doe citizens, one of whom is facing the death penalty, in arguing that an attorney licensed in a sister state "is better than no lawyer" at all.

They say California's massive backlog of pending cases, including 4 million pro se civil cases and 700 capital cases, could be eased if the state relaxed its admission rules.

In a 47-page lawsuit peppered with analogies, the lawyers urged the courts to adopt Apple's mission to "Think Different" about "a systemic national problem that affects all lawyers travelling interstate, and all Americans who seek legal services."

They want the state to admit all sister-state lawyers who pass moral character clearance and who can prove they are admitted and in good standing.

Relaxing the admission rules will neither diminish the state's control of its admission process nor the district court's control over its bar, they claim.

The plaintiffs reject as "patently false" the "hypothesis that ... experienced attorneys should have to take and pass another state's bar exam in order to provide public protection," according to the complaint.

The rules "provide built-in headwinds and a home-field advantage for forum state attorneys," the lawyers say.

"Plaintiffs as members of the bar have a constitutional duty and a professional responsibility to protest the unequal treatment they have been afforded," they add.

They note that the U.S. Supreme Court has held that bar admission for sister-state attorneys is protected under the U.S. Constitution, and that the American Bar Association recommends that lawyers with three years of experience should not have to take another exam.

Represented by Grant Savoy of Los Angeles, the plaintiffs seek a declaration that the California bar exam is "invalid and unconstitutional."

Named defendants include Chief Justice of California Tani Gorre Cantil-Sakauye, 9th Circuit Chief Justice Alex Kozinski, and Chief Judge James Ware of the U.S. District Court for the Northern District of California.

Monday, September 3, 2012

A Florida lawyer living in Colorado has had her personal information compromised, potentially setting her up for identity theft or impersonation.

Laurie Morris unwittingly provided the miscreants her sensitive information when she submitted paperwork for a background check to what she thought was a California law firm.

It wasn't. Now she is worried about what will happen next.

Morris recently moved from Tampa to Denver and since she is not licensed in Colorado, she has been working with a placement agency to secure various contract positions.

After completing an eight-month assignment she got through the agency, Morris was contacted again in July regarding a job with "Isaacson Goldberg Warner," purportedly a California firm that had a medical malpractice case set for trial in Denver in October and needed some extra help.

"They supposedly reviewed my resume, approved me, and sent me some paperwork to fill out for a background check," said Morris, adding she was "hired" along with another lawyer and a paralegal and told when and where to report to get started on the case.

When that day came, the "California lawyers" never showed and failed to respond to calls from the placement agency.

After contacting the State Bar of California and the property managers of the building supposedly housing the firm, it became clear "Isaacson Goldberg Warner" didn't exist.

"All we can guess is this is some sort of scam to secure personal information, because they did not get anything else from us," Morris said. "But they do have my Social Security number, my driver's license number, my date of birth, my address, and they know I'm an attorney — all the identity theft information."

As of yet, there have been no known repercussions. Morris said she has taken all the steps she can think of to minimize any damage — such as contacting her banks, credit reporting agencies, and The Florida Bar to alert them about what happened.

Morris said the placement agency also had sensitive information stolen because the fake firm asked the agency to run payroll for the contract lawyers through its account, as opposed to the "firm" paying the lawyers directly.

"So they now have her banking information, so she is also compromised both professionally and personally," Morris said.

Morris and the placement agency alerted local law enforcement and the FBI, which has turned the case over to its cybercrimes unit.

"It looks like it was all Internet based," said Morris, adding the Isaacson Goldberg Warner website's IP server address has been traced back to Bermuda.

Morris said the scammers were pretty sophisticated, and the ruse included Isaacson Goldberg Warner website and found much of the verbiage on the site was pirated from a Washington, D.C., based international law firm's website.

What's next?

Morris now worries about what the fraudster may do with her personal information: sell it to others; open credit card accounts in her name; obtain loans; get a driver's license or official ID card issued in her name but with someone else's picture; or even hold themselves out as her and practice law. What terrifies her most is the prospect of the fraudsters perpetrating more scams using her identity, and having Bar complaints wrongfully filed against her.

Unfortunately, Morris said, she did not have a lot of information about the firm she was applying to work for before the scam got too far along, which is typically the way placement agencies work.

"At the beginning it is double blind; they don't tell me who their client is and they redact my information when they submit my resume," Morris said. "Until it is finalized, you don't really know who you are working for."

Going forward, Morris said if a potential employer wants to do a background check, she will demand to know why, since she is already a licensed professional. If the employer insists, she will ask to be provided with the name of the company that will run the background check "and I'll communicate with them directly."

Morris said her placement agency now plans to run its own background checks and not let potential employers perform them anymore.

"This is a fairly elaborate scam, which seems to be getting more common," said Elizabeth Tarbert, the Bar's ethics counsel. "Unfortunately, it is a lot easier with the Internet — and without real cost but time — to create credentials, such as a fake website, or in the case of another scam, the fake bank check."

Tarbert said it is good advice to try to get as much information as possible about potential employers before giving them sensitive personal information.

The Federal Trade Commission estimates that as many as nine million Americans have their identities stolen each year.

To learn more about ID theft or what to do if you think or know your identity has been stolen, visit www.ftc.gov/bcp/edu/microsites/idtheft.

Lawyers for an Iowa woman facing a second death penalty trial for her role in the execution-style killings of five people in 1993 are planning to challenge the process used to select juries, saying it may discriminate against women and minorities.

Attorneys for Angela Johnson filed a motion Friday asking for years of data and other documents so they can analyze the racial and gender makeup of grand juries and trial juries in the federal district that covers the northern half of Iowa. They say they intend to challenge the constitutionality of the system, arguing minorities may be underrepresented by the way federal officials create the pool of potential jurors and women could be discriminated against in the selection of forepersons.

"The importance of a representative grand and trial jury to the fair administration of justice cannot be overstated, particularly in a capital case," they wrote.

Johnson is set to go on trial next year to determine whether she will be sent back to federal death row, where she was the first woman in decades after her original conviction in 2005 on four counts of capital murder. U.S. District Judge Mark Bennett overturned her death sentence last year, ruling that her lawyers failed to present evidence about her mental state that could have convinced jurors to spare her life. Bennett ordered a new trial to determine her sentence, not her guilt or innocence.

Johnson and her then-boyfriend Dustin Honken, a chemistry wiz who became one of the Midwest's first methamphetamine kingpins, were convicted of killing three adults and two children to thwart a federal investigation into his multistate drug business. The victims included two former dealers for Honken who were cooperating with investigators; one of their girlfriends, and her two children who happened to be home when Honken and Johnson came looking for them.

Prosecutors said Johnson posed as a saleswoman to get into one of their homes in 1993, days before Honken was to plead guilty to drug charges. Honken and Johnson forced one of the dealers to make a videotaped statement exonerating Honken, then took him, his girlfriend and the children to a field where they were each shot in the back of the head. Months later, Johnson lured a second dealer, who was her former boyfriend, to a secluded location where Honken shot him several times and beat him with a baseball bat.

The drug charges were dropped, and Honken remained a free man.

The victims' bodies were not found until 2000, when Johnson drew a map for a jailhouse informant that led authorities to their graves near Mason City. Iowa doesn't have the death penalty but federal prosecutors intervened, seeking capital punishment because the case involved the killing of witnesses and children. Jurors sentenced Honken, who remains on death row, and Johnson to death after separate trials.

Judge Bennett gave federal prosecutors the option to convert Johnson's sentence to life in prison in his March ruling, but they declined and sought another death penalty trial. Johnson was only one of two women on federal death row when she was removed earlier this year after Bennett found "shockingly numerous and disturbing constitutional deficiencies in the performance of Johnson's alarmingly dysfunctional trial team."

Defense attorney Marcia Morrissey of Santa Monica, Calif., said the data being sought will help determine whether disparities exist in the number of blacks, Latinos, Asians and other ethnic minorities who serve on juries compared to their population in northern Iowa. She said the district's system of using voter registration and motor vehicle ownership data tends to discriminate against those groups, who are more mobile than whites, particularly since the lists are only required to be updated every four years.

Defense lawyers also want records that would show how often women are selected to serve as forepersons and documents related to persons who were disqualified or excused from jury service in the last 18 months.

Assistant U.S. Attorney C.J. Williams said he was in the process of reviewing the request, and would file a response. He noted that the 8th Circuit Court of Appeals has previously found the district's system for selecting jurors to be constitutional. In at least two cases, the appeals court has rejected claims that blacks were underrepresented in the system.

Sunday, September 2, 2012

At last week's 2012 Lavender Law Conference in Washington D.C. Attorney General Eric Holder spoke about how President Obama and his administration had taken important steps to ensure equality and justice for LGBT people.

Speaking before approximately 1,000 lawyers and legal professionals, at the annual gathering hosted by the National LGBT Bar Association, the attorney general began his speech by underlining President Obama's commitment to LGBT equality saying, "For President Obama, for me, and for our colleagues at every level of the Obama administration, this work [LGBT equality] has long been a top priority - and I'm pleased to note that it has resulted in meaningful, measurable, and enduring change."

Citing the historic repeal of DADT Holder said, "As we approach the one-year anniversary of the end of Don't Ask, Don't Tell, it's worth celebrating the fact that so many brave servicemen and women can now serve their country proudly, honestly, openly, and without fear of discharge."

He referenced the fact, with pride, that President Obama and he had directed Justice Department attorneys not to defend the constitutionality of section 3 of the Defense of Marriage Act.

Acknowledging the leadership and dedication of Assistant Attorney General Tom Perez, he confirmed the Department of Justice continues to make "robust efforts" to ensure the "vigorous enforcement of civil rights protections in order to safeguard LGBT individuals and others from the most brutal forms of bias-motivated violence."

Concluding, Holder encouraged members of the audience to remain engaged in the work of the Obama administration to ensure equality and justice for LGBT people, "… I'm not just here to thank you for all you've done to help bring us to this point; to highlight the administration's efforts in service of the same cause; or to celebrate everything that we've achieved together.

I'm also here to ask for your continued help, to draw on your considerable passion and expertise, and to reiterate the Department's commitment - and my own - to building on the momentum we've established, and ensuring that the recent successes we've seen are just the beginning."

Brett Favre shouldn't have to respond to some embarrassing claims about his personal life that two massage therapists are making in a lawsuit, his lawyers say.

The massage therapists say the New York Jets blacklisted them after they objected to suggestive messages the legendary quarterback allegedly sent to another woman. Among other things, they asked him to admit or deny he solicited women for sex trysts and sent explicit photos to a former Jets game hostess. The request was part of a procedural step in their 2011 lawsuit.

Favre's attorneys filed papers this week asking a court to say he doesn't have to answer. They say some of the requests are irrelevant and inappropriate, including a bid to get him to acknowledge that a lewd photo that appeared on a sports gossip website depicts his own anatomy.

"These requests clearly have absolutely nothing to do with this lawsuit and have been included only to harass and embarrass," attorney Sharon H. Stern and other Favre lawyers wrote.

The rest of the requests are "nonsensical" or too much in debate to ask him simply to admit them, his lawyers said.

The Jets and another defendant, a massage therapist who helped others get work with the team, filed similar objections this week.

The massage therapists' lawyer called the filings an effort to shield Favre from having to discuss his conduct.

"It's yet another attempt by the defendants, particularly Brett Favre, to avoid having to testify under oath in this matter," attorney Elizabeth Eilender said.

The Jets' lawyer declined to comment. Lawyers for Favre and the other defendant didn't immediately respond to phone and email messages Wednesday evening.

Massage therapists Shannon O'Toole and Christina Scavo say they were called to give massages at the Jets training camp and to various players individually, until they ran afoul of Favre.

During the 2008 preseason, the lawsuit alleges, the now-retired three-time NFL MVP sent another woman a text message asking to get together with her and Scavo, followed by another text saying, "I guess I have bad intentions."

After Scavo's husband asked Favre to apologize, she and O'Toole lost gigs with the Jets, the suit says. They are seeking unspecified damages.

The suit was filed five days after the NFL fined Favre $50,000 for not being forthright in an investigation into allegations that he sent bawdy text messages and photos to former Jets game hostess Jenn Sterger when they both worked for the team. During that investigation, media reports claimed Favre also had pursued massage therapists, but the NFL said it was unable to get enough information to decide whether the reports were substantiated.

The Jets have said O'Toole and Scavo worked for the team for a combined total of only five days over two years, making $2,300 in all, and were never guaranteed any ongoing work. The team wasn't told about the women's concerns and simply turned to other massage therapists after its training facility moved in 2008, Jets officials and lawyers said in court filings.

In court papers, Favre has denied the allegations and argued that if Scavo and O'Toole lost work, he wasn't responsible for it.

Favre retired from the NFL in 2010, after playing for 20 seasons, mostly with the Green Bay Packers. He is the league's all-time leader with 71,838 passing yards and 508 touchdowns, won a Super Bowl with the Packers in 1996, and holds the 297-game record for consecutive starts.

He is now helping coach the football team at Oak Grove High School in Hattiesburg, Miss., near his home.

Saturday, September 1, 2012

Defense attorneys whose cases hinge on samples tested at a now-shuttered state-run drug lab yesterday charged that a logbook was "doctored" to cover up the alleged mishandling of drug evidence by a disgraced chemist at the center of a state police probe.

On June 21, 2011, one day after supervisors of the William A. Hinton State Laboratory Institute chemist - identified by multiple criminal lawyers as Annie Dookhan - found no trace of her logging drugs in and out and of an evidence room for testing on June 14, the record-keeping "irregularities" were suddenly fixed, Linda Han, head of the Department of Public Health lab, wrote in a Feb. 21 letter this year to Norfolk District Attorney Michael Morrissey.

"On June 21st, when the log book was re-examined, entries did appear showing a transfer of the samples from the evidence office to the chemist. It appeared that these entries were made by the chemist after June 14," Han told the district attorney, noting the chemist was immediately stripped of her lab duties.

Late last night state police Superintendent Timothy P. Alben announced in an email that Dookhan's immediate supervisor at the lab had been placed on leave during the investigation "because the supervisor was responsible for overseeing the work of the lab chemist." Earlier in the evening state Public Health Commissioner John Auerbach also put on leave his agency's division director who oversaw the lab before the state police took it over on July 1 "pending the outcome of the attorney general's investigation." Neither was named. A state police spokesman added that the 10 chemists still on the Hinton payroll were also placed on "temporary administrative leave" until they can be transferred to a different lab in Sudbury, probably sometime next week.

In addition, Alben promised last night to provide a list of cases affected by the scandal next week.

Anne Goldbach, forensic services director for the Committee for Public Counsel Services, said based on Han's letter, which was included in court filings, "It appears she tried to go back and sign the drugs out. ... It appears she tried to cover up her breach of protocol but it had already been discovered the day before by her supervisors."

Lawyer Rosemary Scapicchio, who said the scandal could "destroy the integrity of the entire (drug testing) system," said she believes the suspected malfeasance may extend beyond the one chemist.

"I don't think this is an isolated incident with this woman," she said, pointing to the system DPH had in place where two chemists worked on each case.

"Somebody doctored the books," said attorney Susan Rayburn, who is representing several defendants whose evidence Dookhan analyzed. "She wasn't operating in a vacuum."

State police, who have said the chemist could face criminal charges, indicated yesterday that no other lab employees are being investigated at this point.

While lab managers barred Dookhan from testing as of June 21, 2011, they waited until Dec. 1 to notify DPH's central office because, as Han wrote, "they did not appreciate its potential legal significance and because of their opinion that the integrity of the test results had not been affected."

State police now say the scope of the problem far exceeded anything officials first imagined, touching essentially every county in eastern Massachusetts and possibly calling into question thousands of cases. A spokeswoman for the U.S. Attorney's Office in Boston also said federal drug cases are under review.

"This has been a huge black mark on the reliability of the crime lab," said Brockton defense attorney Kevin Reddington.

California's requirement that attorneys from other states take a state bar exam violates the U.S. Constitution, four lawyers and two citizens claim in court.

The attorneys filed a federal lawsuit against the California Supreme Court, the 9th Circuit Judicial Counsel, the U.S. District for the Northern District of California Court and more than two dozen judges.

"Plaintiffs apologize to the Courts for suing them," they wrote, but added that it was necessary to "improve the courts' efficiency and standing in the community."

Lawyers Jose Garcia, Marinna Callaway, Suzy Lee and an unnamed attorney whose husband is in the military joined two Doe citizens, one of whom is facing the death penalty, in arguing that an attorney licensed in a sister state "is better than no lawyer" at all.

They say California's massive backlog of pending cases, including 4 million pro se civil cases and 700 capital cases, could be eased if the state relaxed its admission rules.

In a 47-page lawsuit peppered with analogies, the lawyers urged the courts to adopt Apple's mission to "Think Different" about "a systemic national problem that affects all lawyers travelling interstate, and all Americans who seek legal services."

They want the state to admit all sister-state lawyers who pass moral character clearance and who can prove they are admitted and in good standing.

Relaxing the admission rules will neither diminish the state's control of its admission process nor the district court's control over its bar, they claim.

The plaintiffs reject as "patently false" the "hypothesis that ... experienced attorneys should have to take and pass another state's bar exam in order to provide public protection," according to the complaint.

The rules "provide built-in headwinds and a home-field advantage for forum state attorneys," the lawyers say.

"Plaintiffs as members of the bar have a constitutional duty and a professional responsibility to protest the unequal treatment they have been afforded," they add.

They note that the U.S. Supreme Court has held that bar admission for sister-state attorneys is protected under the U.S. Constitution, and that the American Bar Association recommends that lawyers with three years of experience should not have to take another exam.

Represented by Grant Savoy of Los Angeles, the plaintiffs seek a declaration that the California bar exam is "invalid and unconstitutional."

Named defendants include Chief Justice of California Tani Gorre Cantil-Sakauye, 9th Circuit Chief Justice Alex Kozinski, and Chief Judge James Ware of the U.S. District Court for the Northern District of California.